Sometimes the wheels of justice grind very slowly.

The High Court heard appeals from this case twice, most recently delivering its decision on 28 September 2011. The NSW Court of Appeal also dealt with the matter twice. On its face it’s a fairly simple negligence action arising from a fall in a public park one night back in 2002. Since then the costs bill in the matter must have acquired the proportions of the rolling ball from the original Indiana Jones’ film.

The Court of Appeal’s first encounter with the matter can be read here. Round two from 2010 can be found here, and my discussion of it here.

Objective facts about how the plaintiff’s fall occurred are lacking. The man himself was drunk and has no recollection of its circumstances. There were no witnesses. What facts he could marshal were important to the plaintiff’s claim of negligence against the local council for failing to erect reasonable fencing, provide adequate lighting, signage, etc.

In the absence of anything more substantial, the notes made by a paramedic who went to the park and took the claimant to hospital by ambulance assumed central importance. This case has been one for evidence scholars to watch as the various courts have wrestled with the issues of admissibility of documentary opinion evidence, and its interplay with hearsay, under the Uniform Evidence Acts.

The general prohibition on opinions at s 76 is disturbed by s 78,

78. Exception – lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if-

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

The rule and its exceptions are applied far more loosely in the civil jurisdiction than in the criminal courts. But even civil trials must have their limits or else the rules of evidence stop performing any gatekeeping function at all.

French CJ, Heydon and Bell JJ found the case raised two groups of issues they described [at 1] as ‘difficult’. The first is whether the notation made by the paramedic, without evidence being given by that person and as likely to have been based on guesswork as information, was admissible at all. The second issue was, even if it was admissible, was that note (either alone or in combination) enough to establish that the plaintiff had been injured by the asserted act of negligence. The majority decided that it wasn’t admissible and that it wouldn’t have been enough, anyway.

Hearsay and business documents

The majority quickly disposed of the idea that just because the record qualified as a business document that meant that it escapes all of the other tests in Chapter 3 of the Act. The Court held the fallacy of that argument emerges just from a plain reading of the relevant sections.

Section 69(2) creates an exception to the hearsay rule for business documents, but a limited one:

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made-

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

The ambit of (b) is unclear. If interpreted widely it could apply to almost anything, allowing something in a document in that would never have been admissible if a witness was saying it on oath. Here, the paramedic who filled in the form was not relying on personal knowledge of the circumstances of the fall. Could it be said that he based it indirectly on information supplied by someone who had personal knowledge of the fall?

The facts as agreed concluded that the plaintiff was unconscious at the time of the attendance of the ambulance (and probably throughout) and that passers-by, also not there at the time of the fall, had noticed him and called for an ambulance, and were there when it arrived.

French CJ, Heydon and Bell JJ [at 17, Gummow and Crennan JJ agreeing about this]:

What is the asserted fact? If the asserted fact is “the respondent fell 1.5 metres onto concrete”, at once a difficulty arises which was not debated by the parties. Section 69(2)(a) cannot apply, because the makers of the representation, the ambulance officers, did not have personal knowledge of a fall of 1.5m onto concrete, and could not reasonably be supposed to have had it, since the fall had happened some time before they arrived. And s 69(2)(b) cannot apply, because even if it were the case that the ambulance officers were told by bystanders that the respondent fell in that fashion, the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: again, the fall took place before the bystanders arrived. The problem may be reduced by the approach adopted by the majority of the Court of Appeal: they saw the impugned representation as a representation that there was a question whether the respondent had fallen 1.5m onto concrete. And the problem may be completely overcome if asserted fact in s 69 includes an opinion in relation to a matter of fact. There is authority that it does: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; (2003) 130 FCR 569 at 573 [18]; Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 at 366-367 [206]- [207]. See also Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [3].

But the construction of asserted fact to include an opinion in relation to a matter of fact, though convenient, is a little strained. In one sense every person who holds an opinion has personal knowledge of it, and indeed is the only person to have personal knowledge of that person’s opinion. But to hold an opinion that the respondent fell in a certain way (or that there is a question about it) is different from having personal knowledge that he fell in that way (or that there is a question about it): that personal knowledge could normally only be derived from seeing or perhaps hearing the event, not by drawing inferences from other circumstances observed some time later. However, it was not argued in this Court that the authorities which state that asserted fact includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage. That is because, even if it is assumed that the difficulty does not exist, the evidence must be held inadmissible on other grounds.

After raising the issue that neither party had addressed, the High Court was content to let the matter go undecided. What a person must have personal knowledge of in order for it to qualify for the exception to hearsay as a business record is still unclear.

Does an opinion in a business record have to comply with ss 76 – 79?

In order for an opinion to be admissible from a witness there are various hoops to be jumped through. The Court affirmed that merely satisfying one of the tests in Chapter 3 doesn’t allow the evidence to be admitted. If it offends against multiple exclusionary rules then it will be necessary to find exceptions that apply to each basis of objection.

French CJ, Heydon and Bell JJ [at 19, Gummow and Crennan JJ again agreeing on these points]:

Section 69 is in Pt 3.2 of the Act. Sections 76-79 are in Pt 3.3. Section 56(1) contemplates that relevant, ie otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2-3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes “[e]vidence of an opinion” – not “evidence by a witness of an opinion”. There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses.

In this case if the opinion about the fall was an opinion at all (rather than just plain hearsay) it could only be lay opinion as allowed by s 78. The majority described the development of the rule at common law rule and its potential scope, but [at 46] weren’t willing to state conclusively whether s 78 is identical or just overlaps the common law.

It was agreed that s 78(a) didn’t apply on these facts. The NSW Court of Appeal had applied a low threshold to the word necessary – too low, according to the High Court. The majority rejected the notion that in its appropriate context the word is synonymous with convenient or conducive.

The word necessary is not directed to meeting difficulties that arise where it is impossible or inconvenient to call the person propounding the opinion as a witness. It is not analogous to the provisions permitting evidence of hearsay statements where better evidence is unavailable (eg ss 63 and 65 of the Act) or where to call better evidence could cause undue expense or undue delay or would not be reasonably practicable (s 64 of the Act). Section 78 is not a best evidence provision, permitting reception of the evidence if there is no better evidence. The word necessary is instead directed to a relationship internal to the evidence of the perceiver – the relationship between the perceiver’s perceptions and the perceiver’s opinion.

Crennan J dissented on the causation issue. The remaining four justices upheld the appeal and ruled in favour of the Lithgow Council, finding – as the original trial judge had – that the causal connection was not made out.